Federal Judge Rules Police Violated First Amendment Rights Of Ferguson Protesters

In response to a lawsuit filed by the ACLU of Missouri, a federal judge ruled Monday that police in Ferguson cannot enforce a so-called ‘five-second rule’ requiring protesters to keep moving or face arrest. Shortly after Missouri Highway Patrol Captain Ron Johnson took charge of security in Ferguson to handle the protests that rose up in the aftermath of Michael Brown’s death, he instituted a ‘keep moving’ rule. After a tense weekend of demonstrations in mid-August, Johnson informed protesters that they were now required to be in constant movement and weren’t allowed to congregate in large groups.

On August 18th, Johnson said the following in response to a question asked by a Huffington Post reporter regarding the new rule:

“We are not going to let groups congregate and build into larger groups because that’s what causes problems. Because what happens is, the peaceful protesters gather, and the other element blends in. Now they blend in, and that’s what’s been causing us some issues. So by allowing them to walk, that’s not going to let the other element blend in and define this group.”

Johnson also took issue with anyone claiming that this was a violation of constitutional rights.

“We’re not violating your rights, we’re allowing you to protest…Protesting does not need to stand still, it needs to be heard. It needs to move forward. So really, the marching around in the circles, we’re keeping our voice moving. I don’t want it to stand still.”

Since that time, demonstrators and reporters have both claimed that police have arbitrarily enforced a five-second rule, wherein they will tell protesters that they are not allowed to stand still for more than five seconds. People who have been in the protests have claimed that police officers would arbitrarily use these rules, generally when they wanted to target specific groups of protesters or try to tire out demonstrators and perhaps force them to go home.

In her ruling Monday, District Judge Catherine Perry said that this police tactic was a clear violation of the protesters’ First Amendment rights and that local police needed to immediately cease enforcing the rule.

“The practice of requiring peaceful demonstrators and others to walk, rather than stand still, violates the constitution. This injunction prevents only the enforcement of an ad hoc rule developed for the Ferguson protests that directed police officers, if they felt like it, to order peaceful, law-abiding protesters to keep moving rather than standing still.”

Perry also stated that police officers violated due process rights of protesters by arbitrarily enforcing rules and having the “unfettered discretion” to do so. At the same time, she said law enforcement has the ability to enforce legitimate laws, as long as they weren’t violating the constitutional rights of people to gather peacefully and protest. Therefore, they are allowed to enforce Missouri’s failure to disperse law, which is a low-grade misdemeanor. She pointed out that the law can only be enforced in a situation of a riot or an unlawful assembly and a person refuses to obey a command to leave the scene at that time.

The ACLU’s lawsuit named two defendants — the St. Louis County Police Department and the superintendent of the Missouri Highway Patrol, Ron Replogle. The Highway Patrol released a statement on Monday in response to the ruling:

“From the outset, the overriding goal of the Missouri State Highway Patrol and the Unified Command has been to allow citizens to speak while keeping the community safe. Today’s ruling is consistent with these principles because it allows protesters to exercise their constitutional rights to peaceably assemble but also allows law enforcement to impose appropriate restrictions to protect the public from violence.”

Meanwhile, both Johnson and St. Louis County Police Chief Jon Belmar have both claimed that they were unaware of the ‘five-second rule.’ Johnson made the claim after he met with protesters late in the evening last week. He was asked questions about the rule as the ACLU had appeared in court earlier in the day challenging it.

Of course, that comes across as a pretty ludicrous statement considering that he specifically put in place a policy where he demanded that protesters keep moving and not gather in groups. Belmar, who is now in charge of the police force overseeing protests, also made the same claim on Monday. It also seems very unlikely that Belmar had no idea that police officers in Ferguson were using this tactic.